Can states ban affirmative action in private universities?

[David Hume]

CRA only applies to public institutions, and 14A can only limit federal funding for private universities. However, powers not delegated to the Union are preserved for states. I think states has the power to write their own CRA to ban discrimination AND preferential treatments based on race, sex, etc, which also applies to private universities. 

I am very curious why no red states has every done this.

[Del Tachi]

Affirmative action programs at private universities must meet the same legal standards as those at public schools.  Title VI of the Civil Rights Act applies to any institution that receives federal funding (which private schools are flush with.)

[politicallefty]

Most red states haven't even abolished affirmative action in the public sector. The states that ban affirmative action are a healthy mix of deep blue, deep red, and swing states. California was the first state to end affirmative action through ballot initiative and it was upheld by an even stronger majority in 2020. This is an issue where I don't align with most others on the left. I hope the Supreme Court issues a sweeping ruling eliminating affirmative action. The Equal Protection Clause means little when affirmative action is allowed. There are many other ways for schools to ensure diversity. They just want to take the easy way out.

[dead0man]

if the uni gets money from the Feds (and almost all of them do), then they have to follow the Fed's rules.

[politicallefty]

if the uni gets money from the Feds (and almost all of them do), then they have to follow the Fed's rules.

That hasn't been entirely resolved. There's a case involving charter schools in North Carolina that require a strict gender-based dress code (i.e. females are required to wear skirts). The Fourth Circuit (en banc) ruled that charter schools are state actors under the Constitution and are therefore subject to the 14th Amendment. They also ruled that Title IX was in play too.

[Adam_Trask]

4th Circuit Case probably will be overturned if S.C. takes cert. There is a case on point (somewhat). Rendell-Baker v. Kohn, 457 U.S. 830 (1982). There, the Court ruled a private school wasn't bound by the 14th amendment because there's no state action. Almost all of the private school's operating budget derived from public funds. However, that case is distinguishable a few ways. Most importantly, the case here was about employment practices, not policies concerning student conduct or admissions.

The opinion in the pending Harvard admissions case may help us get a sense of what the Court thinks in this area, but I think the o.p.'s question is open and won't be addressed there. From my perspective, it seems the current court is very critical of affirmative action. Robert's will likely write the opinion (in at least the UNC affirmative action case). Invalidating an affirmative action program in the Seattle and Louisville schools, he wrote that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. See Community Schools v. Seattle School District.

I think on the overarching question, private institutions are generally free to create their own policies, procedures, etc. Perhaps the o.p. is right that the States preserve the right to regulate private institutions as they see fit. And, imo, it appears the Court is more sympathetic to state's power at the moment. Thus, it seems unlikely the current S.C. would challenge a State's regulations of private colleges. National Pork Producers v. Ross exemplifies this trend. Thus, a case on o.p.'s question might be a perfect storm for conservative revanchism.

Personally, I don't think this kind of law would be prudent. I think it contradicts a conservative perspective on the relationship of private actors to the state in a number of ways. And while it might be a temporary win, I'm not sure this is outcome doesn't come back to hurt conservatives in a couple of different ways.

Indeed, I think this National Pork Producers case is a good example of why these kinds of contradictions will eventually undermine conservative goals. In that case, California was given a free hand to set national commerce regulations. I think conservatives are excited about this because it will give them cover for actions by Texas and Florida (for example). I think the first big flashpoint in this area will be over social media regulations. And there, I don't think it's a good idea to give state's such diverse powers. There is a real benefit to a unified national market. Truly, I think this leads to big national conflicts which can only be solved by Federal policy making where all states are represented (even if that representation is somewhat unequal). Our federal system is a delicate, and we should be worried about upsetting the balance of power too much.

[politicallefty]

4th Circuit Case probably will be overturned if S.C. takes cert. There is a case on point (somewhat). Rendell-Baker v. Kohn, 457 U.S. 830 (1982). There, the Court ruled a private school wasn't bound by the 14th amendment because there's no state action. Almost all of the private school's operating budget derived from public funds. However, that case is distinguishable a few ways. Most importantly, the case here was about employment practices, not policies concerning student conduct or admissions.

I admit I've only given the current 4th Circuit case a cursory look. I do think charter schools are quite different under the law compared to straight-up private schools. Unless I'm missing something on this issue, if charter schools are allowed to discriminate on this issue, they would be outside the realm of other constitutional decisions such as Brown v. Board of Education. Either the 14th Amendment applies or it doesn't. There's no in-between when it comes to constitutional rights.

The opinion in the pending Harvard admissions case may help us get a sense of what the Court thinks in this area, but I think the o.p.'s question is open and won't be addressed there. From my perspective, it seems the current court is very critical of affirmative action. Robert's will likely write the opinion (in at least the UNC affirmative action case). Invalidating an affirmative action program in the Seattle and Louisville schools, he wrote that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. See Community Schools v. Seattle School District.

[...]

Indeed, I think this National Pork Producers case is a good example of why these kinds of contradictions will eventually undermine conservative goals. In that case, California was given a free hand to set national commerce regulations. I think conservatives are excited about this because it will give them cover for actions by Texas and Florida (for example). I think the first big flashpoint in this area will be over social media regulations. And there, I don't think it's a good idea to give state's such diverse powers. There is a real benefit to a unified national market. Truly, I think this leads to big national conflicts which can only be solved by Federal policy making where all states are represented (even if that representation is somewhat unequal). Our federal system is a delicate, and we should be worried about upsetting the balance of power too much.

I am also expecting Roberts to be the one to write the affirmative action cases as well. He's passionate about this issue and his only majority opinions are from March and April, nothing from anything last year. I don't think the two are going to be disentangled. We're going to get them both at the same time. I don't know how it'll all come down in the end though.

As for applying National Pork Producers to social media regulations, I think you're missing the major First Amendment issue there. (Pork regulations don't implicate free speech rights.) There's also the issue that Congress has already legislated on the issue of online regulations and has implied preemption (if not explicitly). California's right to regulate the sale of pork in the manner prescribed by law is not an absolute constitutional right. It just doesn't violate the Dormant Commerce Clause. Congress has full authority to override/preempt California's law if it seeks to do so.

[David Hume]

4th Circuit Case probably will be overturned if S.C. takes cert. There is a case on point (somewhat). Rendell-Baker v. Kohn, 457 U.S. 830 (1982). There, the Court ruled a private school wasn't bound by the 14th amendment because there's no state action. Almost all of the private school's operating budget derived from public funds. However, that case is distinguishable a few ways. Most importantly, the case here was about employment practices, not policies concerning student conduct or admissions.

The opinion in the pending Harvard admissions case may help us get a sense of what the Court thinks in this area, but I think the o.p.'s question is open and won't be addressed there. From my perspective, it seems the current court is very critical of affirmative action. Robert's will likely write the opinion (in at least the UNC affirmative action case). Invalidating an affirmative action program in the Seattle and Louisville schools, he wrote that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. See Community Schools v. Seattle School District.

I think on the overarching question, private institutions are generally free to create their own policies, procedures, etc. Perhaps the o.p. is right that the States preserve the right to regulate private institutions as they see fit. And, imo, it appears the Court is more sympathetic to state's power at the moment. Thus, it seems unlikely the current S.C. would challenge a State's regulations of private colleges. National Pork Producers v. Ross exemplifies this trend. Thus, a case on o.p.'s question might be a perfect storm for conservative revanchism.

Personally, I don't think this kind of law would be prudent. I think it contradicts a conservative perspective on the relationship of private actors to the state in a number of ways. And while it might be a temporary win, I'm not sure this is outcome doesn't come back to hurt conservatives in a couple of different ways.

Indeed, I think this National Pork Producers case is a good example of why these kinds of contradictions will eventually undermine conservative goals. In that case, California was given a free hand to set national commerce regulations. I think conservatives are excited about this because it will give them cover for actions by Texas and Florida (for example). I think the first big flashpoint in this area will be over social media regulations. And there, I don't think it's a good idea to give state's such diverse powers. There is a real benefit to a unified national market. Truly, I think this leads to big national conflicts which can only be solved by Federal policy making where all states are represented (even if that representation is somewhat unequal). Our federal system is a delicate, and we should be worried about upsetting the balance of power too much.

FL and TX can jointly mandate using one specific conservative sex education textbook, so that it becomes the standard.

[Skill and Chance]

4th Circuit Case probably will be overturned if S.C. takes cert. There is a case on point (somewhat). Rendell-Baker v. Kohn, 457 U.S. 830 (1982). There, the Court ruled a private school wasn't bound by the 14th amendment because there's no state action. Almost all of the private school's operating budget derived from public funds. However, that case is distinguishable a few ways. Most importantly, the case here was about employment practices, not policies concerning student conduct or admissions.

I admit I've only given the current 4th Circuit case a cursory look. I do think charter schools are quite different under the law compared to straight-up private schools. Unless I'm missing something on this issue, if charter schools are allowed to discriminate on this issue, they would be outside the realm of other constitutional decisions such as Brown v. Board of Education. Either the 14th Amendment applies or it doesn't. There's no in-between when it comes to constitutional rights.

I have a question about this.  I thought that whether or not a given practice is unconstitutional sex discrimination is constitutional is subject to an intermediate standard compared to a stricter standard for racial discrimination?  If so, there would be room to say that separate male/female dress codes are constitutional, while something like separate dress codes by race obviously would not be?

Also, I could see someone from an originalist standpoint taking a absolutist position that the various clauses of the 14th Amendment were enacted to prohibit any sort of racial discrimination at any level of government, but weren't meant to apply to sex discrimination at all.  However, that probably only has 2-3 votes even on this SCOTUS. 

[wnwnwn]

Most red states haven't even abolished affirmative action in the public sector. The states that ban affirmative action are a healthy mix of deep blue, deep red, and swing states. California was the first state to end affirmative action through ballot initiative and it was upheld by an even stronger majority in 2020. This is an issue where I don't align with most others on the left. I hope the Supreme Court issues a sweeping ruling eliminating affirmative action. The Equal Protection Clause means little when affirmative action is allowed. There are many other ways for schools to ensure diversity. They just want to take the easy way out.

That's beacuse the biggest opponents of AA are asian americans (who, by the way, are still victims of racism) and California is the most asian US state.

[brucejoel99]

That the 14A bans affirmative action only in public institutions & the CRA goes so far only as to limit federal funding for it in (rather than ban it outright from) private universities doesn't rob the states of their police power: since Congress hasn't yet made it illegal for the states to ban private-sector affirmative action, the states can ban private-sector affirmative action.

[politicallefty]

I have a question about this.  I thought that whether or not a given practice is unconstitutional sex discrimination is constitutional is subject to an intermediate standard compared to a stricter standard for racial discrimination?  If so, there would be room to say that separate male/female dress codes are constitutional, while something like separate dress codes by race obviously would not be?

Also, I could see someone from an originalist standpoint taking a absolutist position that the various clauses of the 14th Amendment were enacted to prohibit any sort of racial discrimination at any level of government, but weren't meant to apply to sex discrimination at all.  However, that probably only has 2-3 votes even on this SCOTUS.

I admit I'm not sure of the boundaries between strict scrutiny and intermediate scrutiny. Separate bathrooms probably satisfy strict scrutiny. However, I'm not convinced that separate dress codes are supported by even intermediate scrutiny. The Constitution cannot be read in a way as to require only females to wear skirts.

[Brother Jonathan]

I have a question about this.  I thought that whether or not a given practice is unconstitutional sex discrimination is constitutional is subject to an intermediate standard compared to a stricter standard for racial discrimination?  If so, there would be room to say that separate male/female dress codes are constitutional, while something like separate dress codes by race obviously would not be?

Also, I could see someone from an originalist standpoint taking a absolutist position that the various clauses of the 14th Amendment were enacted to prohibit any sort of racial discrimination at any level of government, but weren't meant to apply to sex discrimination at all.  However, that probably only has 2-3 votes even on this SCOTUS.

I admit I'm not sure of the boundaries between strict scrutiny and intermediate scrutiny. Separate bathrooms probably satisfy strict scrutiny. However, I'm not convinced that separate dress codes are supported by even intermediate scrutiny. The Constitution cannot be read in a way as to require only females to wear skirts.

As I understand it, sex discrimination does fall in the intermediate scrutiny bucket, though it tends to be on the stricter end of intermediate.

Here is a case out of the Fourth Circuit dealing with this in the context of charter schools receiving public funding; requiring a skirt for female students was found to be impermissible sex discrimination. This seems to be a case where the code falls closer to a uniform, instead of just being a standard that has to be satisfied but where the choice of what clothing to wear is left open, which presumably would not be an issue.

https://www.nytimes.com/2022/06/17/us/nc-school-dress-code-skirts-lawsuit.html

[politicallefty]

I have a question about this.  I thought that whether or not a given practice is unconstitutional sex discrimination is constitutional is subject to an intermediate standard compared to a stricter standard for racial discrimination?  If so, there would be room to say that separate male/female dress codes are constitutional, while something like separate dress codes by race obviously would not be?

Also, I could see someone from an originalist standpoint taking a absolutist position that the various clauses of the 14th Amendment were enacted to prohibit any sort of racial discrimination at any level of government, but weren't meant to apply to sex discrimination at all.  However, that probably only has 2-3 votes even on this SCOTUS.

I admit I'm not sure of the boundaries between strict scrutiny and intermediate scrutiny. Separate bathrooms probably satisfy strict scrutiny. However, I'm not convinced that separate dress codes are supported by even intermediate scrutiny. The Constitution cannot be read in a way as to require only females to wear skirts.

As I understand it, sex discrimination does fall in the intermediate scrutiny bucket, though it tends to be on the stricter end of intermediate.

Here is a case out of the Fourth Circuit dealing with this in the context of charter schools receiving public funding; requiring a skirt for female students was found to be impermissible sex discrimination. This seems to be a case where the code falls closer to a uniform, instead of just being a standard that has to be satisfied but where the choice of what clothing to wear is left open, which presumably would not be an issue.

https://www.nytimes.com/2022/06/17/us/nc-school-dress-code-skirts-lawsuit.html

That's my understanding as well. My point was that dress codes that require only females to wear skirts do not satisfy even intermediate scrutiny. (I struggle to even find rational basis for such requirements.) If the 14th Amendment held sex discrimination to its highest level of scrutiny (essentially, de facto ERA), strict scrutiny would be required and I do believe gender-based bathrooms would still satisfy that level of scrutiny (something that is definitely not the case with respect to separating bathrooms on account of race). Prior to the recent panic over trans issues, are there even laws that prohibit one from entering a restroom of labelled for the opposite gender?

The decision you mention has a complicating factor though. It's a charter school, which implicates the state action doctrine.

[Dan the Roman]

I have a question about this.  I thought that whether or not a given practice is unconstitutional sex discrimination is constitutional is subject to an intermediate standard compared to a stricter standard for racial discrimination?  If so, there would be room to say that separate male/female dress codes are constitutional, while something like separate dress codes by race obviously would not be?

Also, I could see someone from an originalist standpoint taking a absolutist position that the various clauses of the 14th Amendment were enacted to prohibit any sort of racial discrimination at any level of government, but weren't meant to apply to sex discrimination at all.  However, that probably only has 2-3 votes even on this SCOTUS.

I admit I'm not sure of the boundaries between strict scrutiny and intermediate scrutiny. Separate bathrooms probably satisfy strict scrutiny. However, I'm not convinced that separate dress codes are supported by even intermediate scrutiny. The Constitution cannot be read in a way as to require only females to wear skirts.

As I understand it, sex discrimination does fall in the intermediate scrutiny bucket, though it tends to be on the stricter end of intermediate.

Here is a case out of the Fourth Circuit dealing with this in the context of charter schools receiving public funding; requiring a skirt for female students was found to be impermissible sex discrimination. This seems to be a case where the code falls closer to a uniform, instead of just being a standard that has to be satisfied but where the choice of what clothing to wear is left open, which presumably would not be an issue.

https://www.nytimes.com/2022/06/17/us/nc-school-dress-code-skirts-lawsuit.html

That's my understanding as well. My point was that dress codes that require only females to wear skirts do not satisfy even intermediate scrutiny. (I struggle to even find rational basis for such requirements.) If the 14th Amendment held sex discrimination to its highest level of scrutiny (essentially, de facto ERA), strict scrutiny would be required and I do believe gender-based bathrooms would still satisfy that level of scrutiny (something that is definitely not the case with respect to separating bathrooms on account of race). Prior to the recent panic over trans issues, are there even laws that prohibit one from entering a restroom of labelled for the opposite gender?

The decision you mention has a complicating factor though. It's a charter school, which implicates the state action doctrine.

The Trans issue right now is stuck on the question of whether it is possible to change sex/gender which holds up the more interesting question of whether the state can set clear lines about what is required and which ones.

It would seem pure self-id defeats the purpose of any sex/gender based accommodations that survive strict scrutiny, but at that point could a state require medical transition? Social transition? Some level of demonstrated intent to undertake either?

The same would seem to be true of dress code. Is a desire to opt-in to a dress code on a regular basis different from doing so once or twice?

Now the place where this would seem to be relevant is actually not with restrooms but with gender quotas for hiring/promotions.

If they are intended to advance women, then allowing an individual to "temporarily opt-in" with no prior history or evidence of social transition outside the office would seem to negate the purpose, but there are some laws that would seem clash with policing that on non discrimination grounds.

Similarly, while Shaun King situations are rare, social media is going to make them less so.

In short, the real significance of Trans debates is likely to be a renewed focus on the constitutional flaw of any AA system. How can you run racial preferences with no uniform definition of race, or record keeping?

[politicallefty]

The Trans issue right now is stuck on the question of whether it is possible to change sex/gender which holds up the more interesting question of whether the state can set clear lines about what is required and which ones.

It would seem pure self-id defeats the purpose of any sex/gender based accommodations that survive strict scrutiny, but at that point could a state require medical transition? Social transition? Some level of demonstrated intent to undertake either?

The same would seem to be true of dress code. Is a desire to opt-in to a dress code on a regular basis different from doing so once or twice?

Now the place where this would seem to be relevant is actually not with restrooms but with gender quotas for hiring/promotions.

If they are intended to advance women, then allowing an individual to "temporarily opt-in" with no prior history or evidence of social transition outside the office would seem to negate the purpose, but there are some laws that would seem clash with policing that on non discrimination grounds.

Similarly, while Shaun King situations are rare, social media is going to make them less so.

In short, the real significance of Trans debates is likely to be a renewed focus on the constitutional flaw of any AA system. How can you run racial preferences with no uniform definition of race, or record keeping?

I don't pretend to know all of the intricacies of the trans rights debate. However, the Bostock majority is still intact (I think it's safe to assume that KBJ would vote the same way as Breyer did). Keep in mind though that that is an interpretation of a statute rather than the 14th Amendment. As far as the Supreme Court goes, I don't think there's a much of a discussion to be had. This Court is not going to further any expansion of rights under the Equal Protection Clause based on sex or gender. It's a struggle just to keep current precedents in place.

My intention was not to bring up the trans rights issue though. I was actually just talking about the enforcement of gender-based restrooms. Prior to the advent of the so-called "bathroom bills", I don't think there was actually any legal enforcement. That's also different from dress codes in another way. There's no reason why both males and females can't wear the same uniform. What is the rational basis to force females to wear skirts when everyone can just wear pants instead? What is and isn't allowed across the board isn't the issue. The issue comes down to selective application based on gender.

As far as the issue of self-id goes, that could apply to a number of things when it comes to constitutional rights. From what I understand of the law, sincerity tends not to be questioned. If someone sincerely believes in the FSM, the government cannot hold it against them.

Going back to the affirmative action debate though, I don't actually believe most affirmative action programs can comport with the Constitution. There may be some limited exceptions in some cases, but certainly not the way it's been used over the past couple decades. With education, an income-based program might be acceptable if it's carefully crafted. Even then, they would need to tread carefully when implementing it.